Trucking Industry Awaiting Court Rulings Over Legality of Banning Felons as Drivers

This story appears in the June 3 print edition of Transport Topics.

Attorneys who specialize in trucking issues are closely watching how courts interpret guidance issued by the U.S. Equal Employment Opportunity Commission that could make motor carriers with blanket bans on hiring convicted felons subject to allegations of discriminatory hiring.

The EEOC guidance said that while employers are permitted to check the criminal backgrounds of applicants, they should develop a “targeted approach” in considering whether the offenses of applicants formerly convicted of crimes are relevant to the job for which they are being considered.

“As a best practice . . . the commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity,” said EEOC’s guidance, issued last year.

Cases are currently moving through the courts in Indiana, North Carolina and Atlanta.

“This new approach can result, in the motor carrier’s case, in harm to the public by requiring carriers to put individuals with elevated risks behind the wheel,” said Prasad Sharma, senior vice president and general counsel for American Trucking Associations.

He said the EEOC’s enforcement focus should be on those cases where the law is violated because of the intent of discriminating against individuals.

“Unfortunately, recent enforcement experience suggests the absence of discriminatory intent or purpose is irrelevant,” Sharma said. “This is an issue that ATA and the industry is following, and everybody is trying to get a better understanding of what is required.”

Other attorneys closely watching the issue are considering the benefit to probing convictions.

David Robinson, an attorney with the law firm of Scopelitis, Garvin, Light, Hanson & Feary PC, recommends that carriers not ask job applicants about arrests.

The reason, Robinson said, is because members of minority groups are disproportionately arrested and convicted of crimes. “Therefore, if a company has a blanket ban against hiring anyone with a criminal record, it ends up working out to be an adverse action against a minority group,” he said.

“The key here is a blanket ban. If you do nothing else, watch your blanket-ban language,” he added.

Though the courts have not yet issued decisions on the EEOC guidance, Robinson said that “traditionally the courts have shown deference to this type of guidance memoranda.”

The guidance, which was not submitted for formal public comment because it was not a rule, has been described by some members of Congress as an “overreach” by the EEOC.

“Should the background check reveal a criminal offense, employers will have to conduct an “individual assessment” and identify a “business necessity” that merits denying the individual’s employment,” Rep. Tim Walberg (R-Mich.), chairman of the Subcommittee on Workforce Protections, said at a hearing.

The head of the EEOC, Jacqueline Berrien, told the subcommittee that the guidance is not intended to prohibit employers from conducting background checks.

“What’s relevant under existing law — and this has been determined by the federal courts — is how those results are used and whether or not the results are related to the job in question,” Berrien told the subcommittee.

In a letter sent to the EEOC prior to the guidance being issued, ATA and several other trade associations alerted the agency that many employers were concerned about the critical need to protect the safety of people and property in U.S. workplaces, and that background checks are an important tool in protecting employees, customers and the public from workplace violence, fraud and theft.

The letter also said that many state and federal statutes require some industries and government entities to conduct background checks and to consider particular kinds of convictions in different ways.

Rob Moseley, an attorney with the Greenville, S.C., law firm of Smith Moore Leatherwood LLP, said that by federal regulation some criminal convictions preclude individuals from obtaining commercial driver licenses.

Federal Motor Carrier Safety Administration regulations say that felony violations within the past 12 months governing the use of a commercial vehicle indicate that the driver has exhibited “a disregard for the safety of the public” and disqualify a driver from operating a commercial vehicle. Offenses include leaving the scene of an accident, and driving while under the influence of alcohol or drugs.

“A disqualified driver must not be allowed to drive a commercial motor vehicle for any reason,” according to FMCSA regulations.